Another serious problem with Rahm’s lawsuit

So apparently Rahm Emanuel is suing to enjoin the Chicago Teachers Union strike. The court injunction is a long-standing enemy of organized labor; so who knows what will actually come of it. Dylan Matthews took a stab at figuring out whether Rahm had a case.

If, however, in the opinion of an employer the strike is or has become a clear and present danger to the health or safety of the public, the employer may initiate in the circuit court of the county in which such danger exists an action for relief which may include, but is not limited to, injunction. The court may grant appropriate relief upon the finding that such clear and present danger exists. An unfair practice or other evidence of lack of clean hands by the educational employer is a defense to such action.

Matthews then proceeds to figure out whether this is satisfied primarily by seeing whether an argument he concocted last week shows that teacher strikes present a “clear and present danger to the health or safety of the public.” The argument last week was that teacher strikes substantially harm student educational attainment. In any case, he concludes that it would be difficult to show that the arguable harm to students presents a clear and present danger and can therefore be enjoined.

I agree that the empirical evidence here is not terribly strong, but I think an even better argument can be made for why Rahm should not be able to enjoin the strike on this basis. As it is, the statute basically says: teachers can strike except if the strike presents a clear and present danger to the health or safety of the public. That means that the statute contemplates the possibility of a strike. If you argue that this teacher strike presents a clear and present danger because all teacher strikes reduce student learning, then you functionally make the strike provision inoperative.

The strike provision would now read something like: teachers can strike except never. This would be a fairly ridiculous way to construe the statute. So a legal theory that relied upon the inherent harm (which again is arguable) teacher strikes impart on learning would presumably fail. Rahm’s legal team would need to carve out a set of instances when strikes were permissible, and show that this strike somehow falls out of it. An argument which tries to show all strikes are impermissible — as the harm-to-students argument does — would gut the part of the statute that clearly intends the contrary.